DEBRA D’AGOSTINO, FOUNDING PARTNER OF THE FEDERAL PRACTICE GROUP, TALKS IMPEACHMENT AND FEDERAL EMPLOYEES WITH GOV EXEC
Posted By fedpractice || 9-Oct-2019
EVAN VUCCI / AP
How Trump’s Defiance of Impeachment Probe Could Leave Federal Employees Criminally Liable
As White House pledges no cooperation, experts say employees have options to remain on a legal path.
OCTOBER 8, 2019 05:34 PM ET
Federal employees being asked to disobey congressional mandates related to an impeachment inquiry into President Trump will have difficult decisions to make as they chart a path forward, legal experts say, but will have certain protections available to them.
The State Department on Tuesday refused to make U.S. Ambassador to the European Union Gordon Sondland available for a scheduled deposition related to Trump’s interactions with Ukraine, and House Democrats now say they will issue a subpoena to demand his testimony. If the administration continues to block him and other employees from complying with Congress, it could put individuals in a precarious legal position. Pat Cipollone, counsel to the president, sent a letter to House leaders Tuesday afternoon informing Congress the administration will not comply with any element of the probe.
“President Trump and his administration reject your baseless, unconstitutional efforts to overturn the democratic process,” Cipollone wrote. “Your unprecedented actions have left the president with no choice. In order to fulfill his duties to the American people, the Constitution, the executive branch and all future occupants of the Office of the Presidency, President Trump and his administration cannot participate in your partisan and unconstitutional inquiry under these circumstances.”
As Congress continues to widen its net for documents and testimony, employees subject to conflicting demands have two options, legal experts told Government Executive. The first is to violate orders from management and give Congress what it wants, assuming protections under whistleblower law. A second possibility is to exercise federal employees’ statutory “right to disobey” orders that violate laws, rules or regulations.
While Trump expanded the “right to disobey” when he signed the Follow the Rules Act in 2017, Dan Meyer, who has served in several positions in the federal government including most recently as executive director of Intelligence Community Whistleblowing and Source Protection and is now a managing partner at the law firm Tully Rinckey, said the safest path is for employees to follow orders and file a grievance later. Case law and the letter of the statute suggest employees cannot legally refuse to carry out an order, Meyer said. Even that decision can be a difficult one for most federal employees, he added.
“The best way to advance your career in the short term is to obey management,” Meyer said. “That’s the sad part about it.”
Debra D’Agostino, founding partner at the Federal Practice Group, agreed the “general rule” for federal workers is to comply with their boss’ directive, then complain about it through legal channels. She added, however, that the current situation is different than most as “there is going to be personal liability for failing to cooperate with Congress.” If employees do not play their cards right, she cautioned, they could face obstruction of justice charges and a lifetime ban from federal service. D’Agostino advised employees not to rely on internal agency counsel, who could be compromised.
Both attorneys suggested employees create a paper trail to document they knew the order was wrong, but that they had no choice but to follow it.
“You want that grievance in place,” Meyer said. “You want that paperwork to say ‘I did what I was told, but I reported it.’ ” He added if the employees then get called before Congress, “you can show as evidence that you wanted to do the right thing.”
Employees could run into trouble if they simply comply with management’s requests and do not take any steps to signal their congressional defiance.
“The defense, ‘I was just doing what I was told,’ only goes so far,” D’Agostino said. “In most cases where you should know better, you should know better, and you’re going to be held responsible.”
Robert Luskin, attorney for Sondland, said on Tuesday his client was “profoundly disappointed” he would not be able to testify, but, as a current State employee, was “required to follow the department’s direction.” Luskin added Sondland “stands ready to testify on short notice, whenever he is permitted to appear.”
A similar incident from 2003 offers some precedent. Congress that year sought information from a career worker, Rick Foster, chief actuary at the Centers for Medicare and Medicaid Services, regarding President George W. Bush’s push to expand prescription drug benefits.
The political appointee in charge of the CMS at the time, Thomas Scully, instructed Foster not to comply with the request, despite a 1912 law that protects civil servants providing information to Congress. Foster later told Congress Scully threatened to fire him if he provided lawmakers with the information they sought. As a result of the dispute, the Justice Department’s Office of Legal Counsel issued an opinion giving agencies wide authority to ignore congressional requests. The Government Accountability Office ultimately ruled that CMS could not legally pay Scully’s salary because he was in violation of an anti-gag order appropriations rider, but the appointee by then had already left government.
In a letter last week to State Secretary Mike Pompeo, congressional Democrats threatened to withhold the salary of anyone who attempts to threaten or prevent any employee from speaking to Congress. They also said anyone who obstructs their investigation could be subject to fines or up to five years in prison, and emphasized anyone who comes to speak to Congress is protected against retaliation by whistleblower law.
D’Agostino said she expects the number of federal employees caught in the impeachment inquiry’s web to grow, citing lawmakers’ interest in the Energy Department’s role in Ukraine discussions, the Defense Department’s role in Ukrainian aid and the Justice Department’s role in investigating the 2016 election.
“There’s going to be a lot of civil servants placed in this uncomfortable situation,” she said.
While Sondland, the E.U. ambassador, is a political appointee not protected by the same whistleblower laws as career employees, Marie Yovanovitch, a career Foreign Service officer and former ambassador to Ukraine, is scheduled to provide her deposition later this week. Non-intelligence community career employees, including FSOs, can give testimony or documents to Congress and receive whistleblower protections, D’Agostino and Meyer said. After providing the information, they can open a claim with the Office of Special Counsel to defend themselves against retaliation for disobeying their supervisors’ orders.
Trump and congressional Republicans have suggested the original whistleblower who shed a light on controversial comments Trump made during a phone call with the Ukrainian president earlier this year should have to testify publicly. While the whistleblower’s identity has not yet been exposed, that threat could discourage other federal employees who may have access to documents lawmakers are seeking from working directly with Congress. D’Agostino called it a “daunting” choice between blowing the whistle and getting “tangled up with Congress’ efforts to enforce their subpoena.”
“In the short term, if you cooperate with the order not to cooperate with Congress, you’re going to stay in management’s good graces,” she said. “For now, anyway.”